5.  The applicant, Błaja News Sp. z o.o., is a limited liability company registered in Łódź. It was represented before the Court by Mr R. Kotliński, its director.
6.  The applicant company publishes a weekly magazine entitled Fakty I Mity. In 2007 the magazine published an article - signed “Anna Tarczynska” - written by the journalist M.Sz. It concerned allegations of unlawful dealings between the Lódź public prosecutor’s office and various criminals involved in drug trafficking. Its opening paragraphs read as follows:
“An elite group of prosecutors trusted by Minister Z. [the then Minister of Justice] are suppressing the truth about a colleague of theirs involved in drug trafficking.
We presume that the Minister is not a drug addict, even though he sometimes does look bizarre. We also presume that the prosecutors said to be his most trusted collaborators are not junkies.
Why then do they tolerate among themselves a well-known prosecutor in Łódź who is involved in drug trafficking?
That’s how [the State] creates an army of janissaries. The woman in question will now do whatever they want, knowing what they can accuse her of. On the other hand, they might be afraid that she will go public with some charges, because it is obvious that she did not consume almost one kilogram of amphetamines herself. Some time ago gossip was going around the town that the prosecutors amuse themselves at their parties by taking amphetamines – an officer of the Central Investigation Office (Centralne Biuro Śledcze) explains to us. ...
But the woman is the most important person in the story. Prosecutor Anna currently works in the Investigation Division of the Łódź Regional Prosecutor’s Office. As recently as April 2006 she was hailed in the media and at receptions as a spokesperson of the appellate prosecutor’s office. Shortly after prosecutor B. became the chief of the latter, she disappeared from public view and [someone else] replaced her.
The real reason for her disappearance from the public scene was fully understandable for a narrow circle of insiders, ... namely prosecutors who knew the details of investigations concerning a well-known case involving the disappearance of drugs stored as physical evidence by the prosecution. ...
7.  The article went on to describe a drug-trafficking transaction on an unspecified date in a street in Łódź, referring to statements by two anonymous witnesses charged with drug trafficking, referred to as witness no. 1 and witness no. 2. They stated that they had handed over the drugs to M.K., who at the material time had been married to “prosecutor Anna”.
The beauty of it was that at the transaction scene [M.K.] had his own security. ... M.K. came to the scene in a blue Renault Clio driven by a woman ... It turns out that it was prosecutor Anna who, being present in the car throughout the transaction, provided a guarantee of security for her [former] husband. ...
In the meantime M.K. disappeared. Even though we do not believe that he had been kindly forewarned that he would be arrested, the fact remains that prosecutor M. stayed the proceedings against his colleague’s husband.
... Prosecutor Anna is unreachable. Even though the secretariat in the Investigation Division told us repeatedly that she was in her office, she never picked up the phone.
8.  Subsequently the prosecutor described in the article as “prosecutor Anna” brought a civil claim against the applicant company and against R.K., its president and editor-in-chief of the magazine. She claimed protection of personal rights within the meaning of Articles 23 and 24 of the Civil Code.
9.  By a judgment of 15 September 2008 the Łódź Regional Court allowed the claim and ordered the applicant company, jointly with the magazine’s editor-in-chief, to publish an apology in the magazine. It was to be published once and was to read as follows:
“The editors of Fakty i mity apologise to Ms ATK – prosecutor at the Łodź Regional Prosecutor’s Office - for breaching her personal rights through publishing in its issue no. 41 in October 2007 untrue information, namely that she had links with criminal circles involved in drug trafficking, for slandering her with allegations of aiding and abetting drug dealing, and for suggesting that criminal proceedings had been instituted against her.
10.  They were also ordered to pay 30,000 Polish zlotys (PLN) to the claimant as compensation for the breach of her personal rights.
11.  The court established that the claimant had married M.K. in 1984. The marriage had been in difficulties since approximately 1995. Her former husband was a businessman. He had experienced considerable financial problems since at least 1995. The de facto breakdown of their marital life had occurred in 1998; the claimant did not know anything about her husband’s professional activities. The family had one car, used essentially by the claimant’s former husband for business purposes. However, he often drove their daughter to school and the claimant to the office so that they did not have to use public transport. In 2001 he left Poland. The parties divorced in 2002.
12.  The impugned article referred to the claimant as “prosecutor Anna” and referred to her function as the prosecutor’s office spokesperson. The court was of the view that it made her identity obvious to any reader familiar with legal circles in Łódź. It was furthermore stated in the article that on an unspecified date she had accompanied her former husband to a meeting held somewhere in a street in Łódź. A certain S.W., remanded in custody at the time of publication of the article, had told Ms O.H.B. - a researcher for the magazine - about that transaction, in which he had been involved together with P.T., a suspect in another set in criminal proceedings. P.T. was also remanded in custody at the time of publication. P.T. had been the claimant’s former husband’s business partner since approximately 1999. He had never met the claimant, but had known that she was a prosecutor.
13.  The journalist M.Sz. - who wrote the article using a pseudonym ‑ had failed to take into consideration the fact that S.W. was remanded in custody and that he had therefore had an interest in blackening the prosecutor’s name, since she had been involved in certain cases against him. His statements should therefore not have been taken at face value. Ms O.H.B. had met S.W. in prison, posing as a relative. However, neither the journalist nor the editor had taken any steps with a view to contacting P.T. in order to obtain information from him that would have corroborated S.W.’s allegations.
14.  The court found that the author had failed to make reasonable efforts to contact the claimant before publication. The efforts on the part of the researcher and the journalist to get in touch with her had been completely inadequate, all the more so given that they were seasoned professionals. The journalist maintained that he tried to call the claimant at her office at least fifty times, but the evidence available to the court did not support his statement. It was further noted that other journalists had managed to contact her via her office, which cast doubt on the veracity of his statement. No reasonable grounds had been adduced to demonstrate that it had not been possible for the defendants to get in touch with a well-known prosecutor working at a publicly known address, namely that of the prosecutor’s offices.
15.  The court noted that the claimant had acted as a prosecutor in certain criminal cases against S.W. and P.T. In criminal proceedings against them - in which they had been convicted of drug trafficking - they had told the court that they had sold 700 g of amphetamines to the prosecutor’s former husband in the presence of an unknown blonde woman who was allegedly waiting in the car. The criminal court noted that S.W. had told the court that the claimant’s former husband had informed him at the time of the transaction that the woman with him was his wife. The civil court observed that the identity of that woman had never been corroborated by any other evidence. When questioned before the civil court, S.W. stated that he had seen the woman for a matter of seconds, and remembered that she was blonde, but did not recognise the claimant.
16.  The court further observed that the claimant’s former husband ‑ against whom criminal proceedings were pending at that time ‑ had gone into hiding and it had been impossible to establish his whereabouts in order to make him testify in the case.
17.  The court found, having heard three witnesses from the claimant’s professional working environment, that the impugned article made her identity obvious to anyone working in prosecutor’s offices and to the police in Łódź. The article had given rise to numerous comments and conversations. It was regarded as an attempt to blacken the claimant’s name and to slander her, motivated by the wish to damage her reputation and call into question her moral standing and professional principles. It was noted that she had been attacked by a criminal who had provided information to the journalists concerning his own criminal case. After the article was published, many people did not know how to behave towards the claimant or what to think of her. An embarrassing silence descended when she joined in conversations. The claimant had suffered serious stress and had felt seriously wronged by the impugned article.
18.  The court concluded that the article breached the claimant’s personal rights, blackened her reputation and exposed her to difficulties and disrepute in her professional and social life. It lacked objectivity and was one-sided. Its tone was unduly sensationalist and it presented mere conjecture as hard facts.
19.  The court reiterated that a person exercising a public office should accept that his or her activities were to be assessed by the public opinion and had to accept public criticism. It noted that freedom of expression could not be understood as arbitrariness. It referred to the provisions of section 6 of the Press Act 1984 which obliged journalists to present true facts to the public. The court further relied on numerous judgments of the Supreme Court by which that court had stressed that journalists were obliged to exercise particular diligence when gathering material and publishing articles. Such diligence was called for, inter alia, as regards the obligation to check the veracity of information obtained from third parties. In the present case, such diligence had not been exercised. While it was true that the claimant’s former husband had purchased amphetamines from S.W. and P.T., no evidence had been presented to the court to show that the claimant had been present at the scene, let alone acting as “security” for the transaction.
20.  The court observed, taking due note of the financial statements of the applicant company for 2007, that it was in a good financial position and that PLN 30,000 in damages was therefore an appropriate award in the circumstances of the present case.
21.  The court questioned the journalist M.Sz., the researcher Ms O.H.B., P.T., S.W., and three other witnesses as to the impact that the article had had in the claimant’s professional environment. The court referred to a note and an e-mail from the prosecutor’s office listing the people who had tried to contact the claimant by phone and to the list of phone calls made to her office.
22.  The applicant company appealed, referring, inter alia, to Article 10 of the Convention. It submitted that the first-instance court had erred in holding that the impugned article breached the claimant’s personal rights, given that the defendant had been motivated by the desire to protect socially justified interests; that the court had refused to take evidence from the files of two criminal cases with a view to establishing that the claimant had been present at the scene of the transaction; and that the court had been arbitrary in establishing that the claimant had not known either what her former husband did for a living or the purpose of the meeting in the street, that the information contained in the article had made it possible for readers to identify the claimant, and that she had been ostracised by her colleagues as a result of the article.
23.  By a judgment of 29 December 2008 the Łódź Court of Appeal dismissed the appeal. It shared the conclusions of the lower court as to the applicant company’s failure to act with the diligence which could and should be expected of journalists. It stressed that the journalist and the researcher had failed to seek information that could have countered their version of events or dispelled doubts as to the facts. It endorsed the lower court’s conclusion that the transaction itself had indeed taken place, but that the claimant’s alleged involvement in it had been presented in a tendentious and unreliable manner. The court referred to Article 10 of the Convention and held that the interference was necessary as the applicant company had breached the claimant’s rights through its insinuations, which were not based to any reasonable degree on the available evidence.
24.  On 27 January 2010 the Supreme Court dismissed the applicant’s company cassation appeal. It observed that the impugned article concerned an event which had indeed occurred, namely a drug-trafficking transaction between the claimant’s former husband and P.T. and S.W. However, the allegations that the claimant had knowingly participated in that transaction ‑ as well as insinuations that she was a drug addict and that she had been passing on drugs on her fellow prosecutors - were, in the light of the evidence gathered in the case, entirely unfounded. Her rights had been thereby breached.
25.  The Supreme Court referred to its own case-law to the effect that journalists were obliged to be diligent when gathering material for the purposes of their articles but that, at the same time, they had a right to draw their own conclusions from material thus gathered (I CK 200/2008). The Press Act 1984 obliged them to comply with the obligation of diligence by contacting persons about whom they wished to write prior to the publication of such material (I CSK 385/07). Such an obligation was all the more important in the present case because, given the claimant’s prosecutorial function in cases against P.T. and S.W., the testimony of the latter could not be accepted uncritically. The journalists had failed to try to contact the claimant, had accepted S.W.’s statements in an undiscriminating manner and had failed to contact P.T. prior to publishing the article.
26.  The Supreme Court acknowledged that shocking or even insulting publications were also covered by the protection of Article 10 of the Convention. However, this protection was not absolute. It could be limited by the legitimate aims listed in paragraph 2 of this provision. Journalists making allegations about individuals were obliged to show that there was sufficient factual basis for their assertions (here it referred to Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, ECHR 2004‑XI). Not only should statements of fact be consistent with the material gathered for the purposes of the press articles, but value judgments should also have a sound factual basis (here it cited Dąbrowski v. Poland, no. 18235/02, 19 December 2006). These principles were equally applicable to situations where the administration of justice or judges or prosecutors were criticised by the press (citing Barfod v. Denmark, 22 February 1989, Series A no. 149; Prager and Oberschlick v. Austria, 26 April 1995, Series A no. 313; and Lešník v. Slovakia, no. 35640/97, ECHR 2003‑IV). The Supreme Court reiterated that informing the general public of improper conduct on the part of public prosecutors served the general interest, but the guarantees enshrined in Article 10 could be successfully relied on only where journalists had reliable and precise information at their disposal that could justify levelling such serious charges against public officials. No such factual information had been put forward by the defendants in the present case. The courts had not therefore erred in finding against them.